December 6, 2019

by Ed Mechmann

(I had the honor today of giving a talk to the Guild of Catholic Lawyers, and I thought I would share my talk more generally because of the significance of the topic.)

In recent years, there has been a well-documented increase in the number and intensity of conflicts on hot button issues like abortion, gay rights, and gender identity, and how they impact religious liberty. The long and complex litigation over the HHS contraception mandate, and the contentious Masterpiece Cakes case, are the most prominent recent cases. Those cases ended well for religious liberty, but they both represent a disturbing trend – they both began with hostile actions by the Administrative State.

In our civics classes, we learned that there are three branches of government – judicial, legislative and executive. But in modern times, a tremendous amount of law-making authority has been delegated by legislatures to administrative agencies, and their permanent civil service staff often act as if they are an independent fourth branch. This has led some commentators to say that we are now governed primarily by what they call “the Administrative State”.

Individuals and institutions are finding that many more decisions that affect them are being made by the Administrative State. All of these interactions create vulnerable points at which life and religious liberty can be threatened:

  • Hundreds of significant formal rules are promulgated every year by federal, state and local administrative agencies. Many go far beyond the requirements of the original statute they purport to implement.
  • Agencies also issue informal “Guidance” documents, “Opinion Letters” or “Bulletins” on how the agency is interpreting its rules, without going through the formal rule-making process. This can be a serious abuse of power by creating de facto laws that far exceed the agency’s de jure authority.
  • Agencies often have secret internal interpretations of their rules that they don’t disclose to the public but apply on a case-by-case basis. You only find out about them when you run afoul of them. This is the stealth threat par excellence.
  • Recipients of licenses, grants or contracts must also certify their compliance with rules or policies as a condition for eligibility. These requirements are usually non-negotiable and are based on the informal or even secret policy positions of the agency.

On top of these ways of making policy, agencies have almost unlimited discretion about when, and against whom, to enforce their rules. Woe to you if you are a disfavored target.

Unfortunately, thanks to the U.S. Supreme Court, there is virtually no protection available under the Free Exercise Clause of the federal Constitution. In their infamous 1990 decision in Employment Division v. Smith, the Court held that if a law is neutral on its face and generally applicable, no exemption must be given to people or institutions whose religious beliefs are violated. The New York State Constitution is also no help, thanks to our Court of Appeals’ 2006 decision in Catholic Charities v. Serio (which rejected a religious liberty challenge to a contraception mandate). That decision bizarrely put the burden of proof on the religious claimant to show that a law is an “unreasonable burden” on their beliefs – an absurdly low standard that is used for no other constitutional right and that provides very little protection for such a fundamental freedom.

The federal Religious Freedom Restoration Act (RFRA) provides some help to religious claimants, but only if the they are challenging a federal law. Many states have their own version of RFRA, but not New York. Even if we had one, there’s no guarantee that it would provide relief. It’s worth recalling that in the lower court decisions on the HHS mandate the religious litigants generally lost, even though they had RFRA on their side.

You also have to realize that challenges to the Administrative State are rigged against the aggrieved party. You typically have to appeal to the agency itself or you have to answer a complaint before an administrative law judge who just happens to work for the agency. That’s right, the first “judge” you’re likely to face is hardly neutral – so much for the ancient principle that “no man can be a judge in his own case”. Of course, the agency’s own Guidance or other policies will govern their interpretation of the law in these proceedings, so the deck is doubly stacked against you. If you try to get relief from a real court, you have a heavy lift. Courts give great deference to the agency’s interpretation of its statutes and regulations. All of this protects the Administrative State from accountability, and unfairly tips the scales in its favor.

There are many examples of how the Administrative State can threaten life and religious liberty:

  • A stealth abortion mandate imposed by New York State regulators on all health insurance plans, by way of “model language” and secret interpretations of the law.
  • On-going battles across the nation over discriminatory and burdensome signage and disclosure requirements for pregnancy care centers.
  • A number of state agencies have tried to force Christian adoption and foster care agencies to violate their religious beliefs and place children with same sex couples.
  • Attempts by New York education authorities to take control of the curricula of religious schools, under the guise of ensuring that the schools are providing the “substantial equivalent” of public school curricula.
  • States and localities have been passing so-called “boss bills”, banning discrimination on the basis of “reproductive health decisions”. The fear is that enforcement agencies will use these laws to attack the freedom of pro-life and Church agencies to make employment decisions in keeping with their beliefs.
  • The New York City Commission on Human Rights publishing detailed Guidance on “discrimination” on the basis of gender identity, including ruinous fines for failing to use a person’s “preferred pronouns”.

More examples abound, and will continue to multiply.

The Administrative State, if left unchecked, will continue to be a grave threat to life and religious liberty. Elections matter, and it’s a good thing if friendly forces are elected, favorable officials are appointed, and agencies issue favorable rules or revoke damaging ones. But often hostile courts will block these moves, and eventually the opposing side will be elected and reverse course. Permanent staff of these agencies, whose political affiliation generally tilt to the left, are also not easily controlled by temporary political appointees.

So what is to be done? Vigilance and activism are essential. We must be aware of the threats and scrutinize every agency action that affects us, whether it is a regulation, enforcement action, or anything else. We have to be ready to challenge them when they threaten life or religious liberty. There are a number of pro-life and religious liberty legal centers that do this work, like Alliance Defending Freedom and Becket. We need to give them the support they need, so they can help us. We should also foster alliances with groups that are seeking to rein in the Administrative State.

But we must be honest about what we’re facing. The Administrative State is deeply embedded in the American system, and there are powerful forces that will resist any attempt to tame it. That means it will be a long and hard struggle, with little or no respite. But this is where the action is, now and for the foreseeable future.